The Criminal Defence Service (Funding) Order 2007

PART 1 Definitions and Scope

Interpretation

1.—(1) In this Schedule—

“case” means proceedings in the Crown Court against any one assisted person—

(a)

on one or more counts of a single indictment;

(b)

arising out of a single notice of appeal against conviction or sentence, or a single committal for sentence, whether on one or more charges; or

(c)

arising out of a single alleged breach of an order of the Crown Court,

and a case falling within paragraph (c) must be treated as a separate case from the proceedings in which the order was made;

“cracked trial” means a case on indictment in which—

(a)

a plea and case management hearing takes place and—

(i)

the case does not proceed to trial (whether by reason of pleas of guilty or for other reasons) or the prosecution offers no evidence; and

(ii)

either—

(aa)

in respect of one or more counts to which the assisted person pleaded guilty, he did not so plead at the plea and case management hearing; or

(bb)

in respect of one or more counts which did not proceed, the prosecution did not, before or at the plea and case management hearing, declare an intention of not proceeding with them; or

(b)

the case is listed for trial without a plea and case management hearing taking place;

“guilty plea” means a case on indictment which—

(a)

is disposed of without a trial because the assisted person pleaded guilty to one or more counts; and

(b)

is not a cracked trial;

“main hearing” means—

(a)

in relation to a case which goes to trial, the trial;

(b)

in relation to a guilty plea, the hearing at which pleas are taken or, where there is more than one such hearing, the last such hearing;

(c)

in relation to a cracked trial, the hearing at which—

(i)

the case becomes a cracked trial by meeting the conditions in the definition of a cracked trial, whether or not any pleas were taken at that hearing; or

(ii)

a formal verdict of not guilty was entered as a result of the prosecution offering no evidence, whether or not the parties attended the hearing;

(d)

in relation to an appeal against conviction or sentence in the Crown Court, the hearing of the appeal;

(e)

in relation to proceedings arising out of a committal for sentence in the Crown Court, the sentencing hearing; and

(f)

in relation to proceedings arising out of an alleged breach of an order of the Crown Court, the hearing at which those proceedings are determined;

“Newton Hearing” means a hearing at which evidence is heard for the purpose of determining the sentence of a convicted person in accordance with the principles of R v Newton (1982) 77 Cr App R 13;

“standard appearance” means an appearance by the trial advocate or substitute advocate in any of the following hearings which do not form part of the main hearing—

(a)

a plea and case management hearing, except the first plea and case management hearing;

(b)

a pre-trial review;

(c)

the hearing of a case listed for plea which is adjourned for trial;

(d)

any hearing (except a trial, a plea and case management hearing, a pre-trial review or a hearing referred to in paragraph 2(1)(b)) which is listed but cannot proceed because of the failure of the assisted person or a witness to attend, the unavailability of a pre-sentence report or other good reason;

(e)

custody time limit applications;

(f)

bail and other applications (except where any such applications take place in the course of a hearing referred to in paragraph 2(1)(b)); or

(g)

the hearing of the case listed for mention only, including applications relating to the date of the trial (except where an application takes place in the course of a hearing referred to in paragraph 2(1)(b)),

provided that a fee is not payable elsewhere under this Schedule in respect of the hearing;

“substitute advocate” means an advocate who is not an instructed advocate or the trial advocate but who undertakes work on the case; and

“trial advocate” means an advocate instructed in accordance with a representation order to represent the assisted person at the main hearing in any case, including a QC or a leading junior advocate so instructed after the hearing at which pleas are taken.

(2) For the purposes of this Schedule, the number of pages of prosecution evidence includes all—

(a) witness statements;

(b) documentary and pictorial exhibits;

(c) records of interviews with the assisted person; and

(d) records of interviews with other defendants,

which form part of the committal or served prosecution documents or which are included in any notice of additional evidence, but does not include any document provided on CD-ROM or by other means of electronic communication.

(3) In proceedings on indictment in the Crown Court initiated otherwise than by committal for trial, the appropriate officer must determine the number of pages of prosecution evidence in accordance with sub-paragraph (2) or as nearly in accordance with sub-paragraph (2) as possible as the nature of the case permits.

(4) A reference to the Table of Offences in this Schedule is to the Table of Offences in Part 6 and a reference to a Class of Offence in this Schedule is to the Class in which that offence is listed in the Table of Offences.

Application

2.—(1) Subject to sub-paragraphs (2) to (8), this Schedule applies to—

(a) every case on indictment; and

(b) the following proceedings in the Crown Court—

(i) an appeal against conviction or sentence;

(ii) a sentencing hearing following a committal for sentence to the Crown Court; and

(iii) proceedings arising out of an alleged breach of an order of the Crown Court (whether or not this Schedule applies to the proceedings in which the order was made).

(2) This Schedule does not apply to a Very High Cost Case which is the subject of an individual contract for the provision of funded services.

(3) Sub-paragraph (4) applies where, following a trial, an order is made for a new trial and the same trial advocate appears at both trials where—

(i) the defendant is an assisted person at both trials; or

(ii) the defendant is an assisted person at the new trial only; or

(iii) the new trial is a cracked trial or guilty plea.

(4) In respect of a new trial, or if he so elects, in respect of the first trial, the trial advocate will receive a graduated fee calculated in accordance with Part 2 or Part 3, as appropriate, except that the fee will be reduced by—

(a) 30 percent, where the new trial started within one month of the conclusion of the first trial;

(b) 20 percent, where the new trial did not start within one month of the conclusion of the first trial;

(c) 40 percent where the new trial becomes a cracked trial or guilty plea within one month of the conclusion of the first trial; or

(d) 25 percent where the new trial becomes a cracked trial or guilty plea more than one month after the conclusion of the first trial.

(5) Where a different trial advocate appears for the assisted person at each trial then, in respect of each trial, the trial advocate will receive a graduated fee calculated in accordance with Part 2 or Part 3, as appropriate.

(6) Where following a case on indictment a Newton hearing takes place—

(a) for the purposes of this Schedule the case will be treated as having gone to trial;

(b) the length of the trial will be taken to be the combined length of the main hearing and the Newton hearing;

(c) the provisions of this Schedule relating to cracked trials and guilty pleas will not apply; and

(d) no fee will be payable under paragraph 12 in respect of the Newton hearing.

(7) Sub-paragraph (8) applies where proceedings are—

(a) sent for trial to the Crown Court under section 51 of the Crime and Disorder Act 1998 (no committal proceedings for indictable-only offences); or

(b) transferred to the Crown Court under—

(i) section 4 of the Criminal Justice Act 1987 (transfer of serious fraud cases); or

(ii) section 53 of the Criminal Justice Act 1991(1) (transfer of certain cases involving children).

(8) Where, at any time after proceedings are sent or transferred to the Crown Court under the provisions referred to in sub-paragraph (7), they are—

(a) discontinued by a notice served under section 23A of the Prosecution of Offences Act 1985(2) (discontinuance of proceedings after accused has been sent for trial); or

(b) dismissed pursuant to—

(i) paragraph 2 of Schedule 3 to the Crime and Disorder Act 1998 (applications for dismissal);

(ii) section 6 of the Criminal Justice Act 1987 (applications for dismissal); or

(iii) paragraph 5 of Schedule 6 to the Criminal Justice Act 1991 (applications for dismissal),

the provisions of paragraph 18 apply.

Class of offences

3.—(1) For the purposes of this Schedule—

(a) every indictable offence falls within the Class under which it is listed in the Table of Offences and, subject to sub-paragraph (2), indictable offences not specifically so listed will be deemed to fall within Class H;

(b) conspiracy to commit an indictable offence contrary to section 1 of the Criminal Law Act 1977(3) (the offence of conspiracy), incitement to commit an indictable offence and attempts to commit an indictable offence contrary to section 1 of the Criminal Attempts Act 1981(4) (attempting to commit an offence), fall within the same Class as the substantive offence to which they relate;

(c) where the Table of Offences specifies that the Class within which an offence falls depends on whether the value involved exceeds a stated limit, the value must be presumed not to exceed that limit unless the advocate making the claim under article 5 proves otherwise to the satisfaction of the appropriate officer;

(d) where more than one count of the indictment is for an offence in relation to which the Class depends on the value involved, that value must be taken to be the total value involved in all those offences, but where two or more counts relate to the same property, the value of that property must be taken into account once only;

(e) where an entry in the Table of Offences specifies an offence as being contrary to a statutory provision, then subject to any express limitation in the entry that entry will include every offence contrary to that statutory provision whether or not the words of description in the entry are appropriate to cover all such offences;

(f) where in a case on indictment there is a hearing to determine the question of whether an assisted person is unfit to plead or unfit to stand trial, the trial advocate must elect whether that hearing falls within the same Class as the indictable offence to which it relates or within Class D; and

(g) where in a case on indictment a restriction order is made under section 41 of the Mental Health Act 1983(5) (power of higher courts to restrict discharge from hospital), the offence falls within Class A, regardless of the Class under which the offence would be listed in the Table of Offences but for this paragraph.

(2) Where an advocate in proceedings in the Crown Court is dissatisfied with the classification within Class H of an indictable offence not listed in the Table of Offences, he may apply to the appropriate officer when lodging his claim for fees to reclassify the offence.

(3) The appropriate officer must, in light of the objections made by the advocate—

(a) confirm the classification of the offence within Class H; or

(b) reclassify the offence,

and must notify the advocate of his decision.

(1)

1991 c.53.

(2)

1985 c.23 Section 23A was inserted by section 119 of the Crime and Disorder Act 1998 (c.37).

(3)

1977 c.45.

(4)

1981 c.47.

(5)

1983 c.20.